Expert Determination

Expert Determination provides an informal, speedy, cost effective way of resolving disputes, particularly those which are technically complex and which lend themselves to open investigation and determination by an expert with knowledge and experience about the matters in dispute.

The process of expert determination is suitable for parties who value their business relationships with each other and who wish to discourage an adversarial interaction as much as is possible without compromising on a settlement opportunity that an objective assessment of facts could offer.

During the course of our technical investigations, we have regularly been impressed at the extent to which people have been prepared to tell their story; authentically and truthfully in a way that they would not have agreed to in a formal court hearing or an adversarial context. With their story often came other helpful leads and technical information which contributed to a comprehensive result.

This has been the case in a variety of countries and ethnic cultures where we have led investigations. In many enquiries, the provision of information did not come without risk to the individual’s own personal future and yet the person still obliged.

Interacting with people in such a context requires skill and experience. Our offer of expert determination services in the construction, technology and aviation spheres is a natural extension of in-depth air crash investigation and engineering investigation services which is supported by training in Alternative Dispute Resolution.

Process

This expert determination and investigation process requires the collating and gathering of technical information to lead the determination process. It follows the layout of the report which is set out to identify Facts separate from Analyses and includes in depth, comprehensive appendices which support the report body. Staff from the companies in dispute are required to contribute to this information without which the expert determination would not be possible. If the parties agree to this process, they are likely to agree to a determination that includes reasons.

The expert determination process can begin by one of the parties requesting an investigation and determination proposal. Following a meeting with each of the disputing parties, Prosolve will prepare a proposal, setting out timing, costs and conditions and defining the issues in dispute as well as any other requirements of the parties. Depending on the wishes of the parties and the nature of the dispute, the format of the proposal is likely to be centred on technical considerations. Commercial considerations can also be considered and reported on or these can be negotiated separately after the technical investigation is completed and report submitted.

It is likely to be necessary for the parties to agree to a set of conditions such as whether the determination will be legally binding and if not, whether the parties will allow the expert’s report to be presented later in a hearing should the dispute not be resolved.

Other items that may need to be agreed to are:

payment procedures;

The powers of the expert during the conduct of the process;

Communication protocols for the enquiring and submitting of information;

Disclosures of conflict of interest;

Representation and confidentiality;

Interim or staged reporting;

Whether the expert determination should be final and binding;

Power to award interest and other commercial matters;

The engagement of other specialists;

Procedures to be decided by the expert where not prescribed;

An exclusion of liability and an indemnity.

After both parties have reviewed the expert determination proposal and met with Andrew McGregor of Prosolve Ltd to agree on process, payment and other details as listed above, a set of minutes will be published to both parties recording procedural matters agreed.

Following that, the investigation and expert determination process may begin.